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United States v. Chen, 4th Cir. (1997)
United States v. Chen, 4th Cir. (1997)
No. 95-5036
No. 95-5042
came into the United States, he was in charge of the guards at the
safehouse in Upper Marlboro, and he later managed the guards at the
house in Mitchelville. Appellant Chang, who was from the same Chinese village as Chong, was himself one of the Chinese nationals
smuggled in as part of the venture. He paid only a part of the ransom
he owed and agreed to work as an armed guard at the Mitchelville
house under Chong's supervision to satisfy the remainder of his debt.
The jury determined that Chong was guilty of all counts charged in
the indictment and that Chang was guilty of all counts except bringing
in and transporting illegal aliens.
II.
Chong and Chang argue that their convictions for using or carrying
a firearm during a crime of violence, see 18 U.S.C.A. 924(c)(1),
must be vacated because the district court misinstructed the jury in
light of Bailey v. United States, 116 S. Ct. 501 (1995). By an equally
divided court, we affirm Appellants' convictions for violating
924(c)(1). Chief Judge Wilkinson, and Judges Russell, Wilkins,
Niemeyer, Luttig, and Williams vote to affirm the convictions. Judges
Widener, Hall, Murnaghan, Hamilton, Michael, and Motz vote to
reverse the convictions.
III.
Chong and Chang also argue that they are entitled to new trials
because numerous procedural errors were made by the district court.
First, they argue that they are entitled to new trials because the Government failed to comply with Brady v. Maryland , 373 U.S. 83
(1963), and the Jencks Act, 18 U.S.C.A. 3500 (West 1985), by not
providing a transcript copy of a witness's prior testimony in a juvenile
proceeding.2 We disagree. The Government did not have custody of
a transcript of the sealed juvenile proceedings. Under the Jencks Act,
the Government is not required to produce a copy of a witness's prior
statements not in its possession. See 18 U.S.C.A. 3500(b) (requiring
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2 The witness, Bao Jin Chen, who testified for the Government against
Chong and Chang, also testified in the previous trial of five juvenile
members of the alien-smuggling ring. See United States v. Juvenile Male,
74 F.3d 526 (4th Cir.), cert. denied, 116 S. Ct. 2558 (1996).
5
his offense level two points because a hostage suffered serious bodily
injury. See U.S.S.G. 2A4.1(b)(2)(B). Chang argues that the district
court erred in refusing to authorize a mental health examination prior
to his sentencing. Such an examination, he argues, would have established that he was eligible for a downward departure under the Sentencing Guidelines. See U.S.S.G. 5K2.12 (coercion and duress).
Chang also complains that the district court erroneously increased his
offense level six points for demanding ransom. See U.S.S.G.
2A4.1(b)(1). After carefully reviewing the record and the parties'
briefs, hearing argument on these issues, and applying the proper
standard of review, we conclude that Appellants' challenges to their
sentences are without merit. See generally United States v. Davis, 19
F.3d 166, 171 (5th Cir. 1994) (affirming enhancement for "serious
bodily injury"); United States v. Graham, 946 F.2d 19, 22 (4th Cir.
1991) (holding that a district court's refusal to depart from the Sentencing Guidelines is unreviewable); United States v. Gonzales, 996
F.2d 88, 93-94 (5th Cir. 1993) (discussing enhancement for ransom
demand); United States v. Rocha, 916 F.2d 219, 242-44 (5th Cir.
1990) (same). We therefore affirm their sentences.
V.
Appellants' convictions for using a firearm during a crime of violence in violation of 18 U.S.C.A. 924(c)(1) are affirmed by an
equally divided court. We affirm their remaining convictions, and we
affirm their sentences.
AFFIRMED
WILLIAMS, Circuit Judge, concurring:
Appellants' 924(c)(1) convictions have been affirmed by the vote
of an equally divided court. Six members of the Court have voted,
without explanation, to reverse Appellants' 924(c)(1) convictions. I
write separately to explain why I am firmly convinced that the facts
of this case and controlling Supreme Court (and Fourth Circuit) precedent compel the affirmance of Appellants' 924(c)(1) convictions,
and why I have voted accordingly. Chief Judge Wilkinson, and
Judges Russell, Wilkins, Niemeyer, and Luttig join this opinion.
7
of "use" was consistent with the prevailing view in this Circuit that
inactive use of a firearm formed a sufficient basis for upholding a
conviction under the statute. See, e.g., United States v. Paz, 927 F.2d
176, 178-79 (4th Cir. 1991) (holding that a "weapon need not be brandished or displayed" but need only be "`present for protection and to
facilitate the likelihood of success, whether or not it is actually used'"
(quoting United States v. Brockington, 849 F.2d 872, 876 (4th Cir.
1988)). In Bailey, however, the Supreme Court held that the Government must show "active employment" to prove that a firearm was
"used" in the manner contemplated by 924(c)(1). See Bailey, 116 S.
Ct. at 506. Active employment, the Supreme Court stated, "includes
brandishing, displaying, bartering, striking with, and most obviously,
firing or attempting to fire, a firearm." Id. at 508. As a result, the district court's jury instruction on "use" was at odds with Bailey.4 Cf.
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It is not necessary that the government prove the defendant
fired or displayed the weapon or even that it was loaded. As long
as the defendant had the firearm available to protect his criminal
endeavor, if he needed to do so, that is sufficient to establish use
of a firearm under this law.
(J.A. at 358.)
4 The district court also misinstructed the jury on the "carry" prong of
924(c)(1). The court instructed the jury that it need find only that
Appellants possessed a firearm to convict them under the "carry" prong
of the statute. Specifically, the court instructed the jury that
[c]arrying a firearm under this statute means to have it within
your control, to have it available in such a way that it furthers
the commission of a crime of violence or was an integral part of
the commission of that crime.
The defendant does not necessarily have to hold it physically.
That is, to have actual possession of it on his person. If you find
the defendant had dominion and control over the place where the
firearm was located and had the power and intention to exercise
control over it, you may find the government has proved that he
carried it.
(J.A. at 358-59.)
Although the Bailey Court did not directly address the definition of
"carry" under the statute, the Court clearly explained that "use" and
10
United States v. Hawthorne, 94 F.3d 118, 121 (4th Cir. 1996) (holding that the district court misinstructed the jury on the "use" prong of
924(c)(1) in light of Bailey); United States v. Smith, 94 F.3d 122,
124-25 (4th Cir. 1996) (same). Thus, the district court committed
error within the meaning of Rule 52(b).
B.
Second, it is necessary that the error that occurred during the trial
be plain. See Olano, 507 U.S. at 734. "`Plain' is synonymous with
`clear' or, equivalently, `obvious.'" Id. (citing United States v. Young,
470 U.S. 1, 17 n.14 (1985)). In cases "where the law at the time of
trial was settled and clearly contrary to the law at the time of appeal,"
as in this case, "it is enough that an error be `plain' at the time of
appellate consideration." Johnson, 117 S. Ct. at 1549; cf. United
States v. David, 83 F.3d 638, 645 (4th Cir. 1996) (holding that error
is plain, even where not obvious at the time of trial, "where an objection at trial would have been indefensible because of existing law, but
a supervening decision prior to appeal reverses that well-settled law").
Here, the instructions given to the jury, while plainly erroneous
before us on appeal, were not plainly erroneous at the time of trial.
Bailey, which was decided on December 6, 1995, clarified the meaning of "use" under 924(c)(1) well after Appellants' trial, which concluded in October of 1994. At that time, the state of the law in this
(and every other) Circuit was such that the district court's error in
instructing the jury was not obvious. See, e.g. , Paz, 927 F.2d at 17879 (inactive use of a firearm sufficient to support 924(c)(1) conviction); Brockington, 849 F.2d at 876 (same); see also United States v.
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"carry" were distinct from each other and different from mere "possession." "[T]he inert presence of a firearm, without more, is not enough to
trigger 924(c)(1)." Bailey v. United States, 116 S. Ct. 501, 508 (1995).
Thus, Bailey dictates that possession alone is not enough to support a
conviction for "carrying." See United States v. Mitchell, 104 F.3d 649,
653 (4th Cir. 1997) (concluding "that the plain meaning of the term
`carry' as used in 924(c)(1) requires knowing possession and bearing,
movement, conveyance, or transportation of the firearm in some manner"
(emphasis added)). Consequently, the district court's "carry" instruction,
like its "use" instruction, was erroneous.
11
Bailey, 36 F.3d 106, 113-14 (D.C. Cir. 1994) (en banc) (collecting
cases), rev'd, 116 S. Ct. 501 (1995). Because "the law at the time of
trial was settled and clearly contrary to the law at the time of appeal,"
Johnson, 117 S. Ct. at 1549, and because it is obvious error today to
instruct a jury that it need not find that a defendant actively employed
a firearm to convict him of "using" a firearm under 924(c)(1), see
Bailey, 116 S. Ct. at 506, Appellants satisfied the requirement of Rule
52(b) that the alleged error be "plain."5
C.
Third, it must also be shown that the error affected Appellants'
substantial rights. See Olano, 507 U.S. at 734. The language "affecting substantial rights" "is the same language employed in Rule 52(a),
and in most cases it means that the error must have been prejudicial:
It must have affected the outcome of the district court proceedings."
Id. An error not affecting the outcome of the trial, i.e., a harmless
error, does not affect a defendant's substantial rights and does not satisfy the third prong of plain-error analysis under Olano. See David,
83 F.3d at 647 (noting that errors "not susceptible to harmless error
analysis [are] also exempt from the showing of prejudice required" by
Olano's third prong); United States v. Floresca, 38 F.3d 706, 713 (4th
Cir. 1994) (en banc) (stating that errors that "can never be harmless
. . . must affect substantial rights").
1.
As the Olano court explained, however, "[t]here may be a special
category of forfeited errors that can be corrected regardless of their
effect on the outcome . . . ." 507 U.S. at 735. For example, this Circuit
has held that harmless-error review is unavailable if the jury was conclusively instructed on an essential element of the crime. See United
States v. Johnson, 71 F.3d 139, 144 (4th Cir. 1995) (holding that a
district court's conclusive instruction to the jury that it must find an
essential element of the crime is an error not susceptible to harmlesserror analysis); accord United States v. Kerley , 838 F.2d 932, 937
(7th Cir. 1988) (holding that the harmless-error doctrine "does not
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5 For similar reasons, the district court's carry instruction constitutes
error that was "plain."
12
apply when the judge directs a partial verdict against the defendant by
telling the jury that one element of the crime . . . has been proved
beyond a reasonable doubt"). As a result, a district court's conclusive
instruction to the jury that it must find an essential element of the
crime satisfies Olano's third prong because such an instruction necessarily affects substantial rights.
This Circuit has also held that a district court's failure to instruct
the jury on an element of the crime is an error not susceptible to
harmless-error analysis. See United States v. Aramony, 88 F.3d 1369,
1387 (4th Cir. 1996) (holding that the district court's failure to
instruct the jury on an essential element of the crime was not subject
to harmless-error analysis), cert. denied, 117 S. Ct. 1842 (1997); see
also United States v. Forbes, 64 F.3d 928, 935 (4th Cir. 1995)
("[F]ailing to instruct the jury on an essential element will rarely be
harmless."). In Johnson, the Supreme Court called into question the
continuing vitality of our holdings in Aramony and Forbes, stating
that it "is by no means clear" that failing to instruct the jury on an
essential element of the offense defies harmless-error analysis. See
Johnson, 117 S. Ct. at 1550; see also United States v. Rogers, 94 F.3d
1519, 1525-26 (11th Cir. 1996) (holding that failure to instruct jury
on essential element of crime is subject to harmless-error analysis),
cert. granted, 117 S. Ct. 1842 (1997). However, the Johnson court did
not expressly hold that such error is amenable to harmless-error
review. See Johnson, 117 S. Ct. at 1550 (noting that "we need not
decide that question"). As a result, in our Circuit at least, a district
court's failure to instruct the jury on an element of the crime, like
conclusively instructing the jury on an element, satisfies Olano's third
prong. See David, 83 F.3d at 647 (stating"that the failure to instruct
on an element of the crime, where the jury never made the constitutionally required findings, is within that `special category' of forfeited
errors, and satisfies Olano's third prong"); United States v. Rogers, 18
F.3d 265, 268 (4th Cir. 1994) (holding "that th[e] failure to give an
instruction on a required element of the crime is an error that affects
substantial rights").
Here, however, Appellants do not argue that the district court
conclusively instructed the jury or failed to instruct the jury on an
essential element of the crime. Instead, Appellants argue that the district court misinstructed the jury concerning what the Government
13
F.3d at 640-41 (same); United States v. Gray, 47 F.3d 1359, 1363 (4th
Cir. 1995) (district court failed to instruct the jury on additional element of crime added by Supreme Court in Ratzlaf v. United States,
510 U.S. 135 (1994)); Rogers, 18 F.3d at 268 (same).
Thus, the district court simply misinstructed the jury on the
requirements of 924(c)(1). In United States v. Hawthorne, 94 F.3d
118 (4th Cir. 1996), and United States v. Smith, 94 F.3d 122 (4th Cir.
1996), this Circuit addressed whether a district court's misinstruction
to the jury on the requirements of 924(c)(1) required reversal.
There, the analysis of whether the misinstruction was susceptible to
harmless-error analysis consisted entirely of the following:
If the jury is misinstructed -- or not instructed at all -- as
to an essential element of the crime, we must set aside the
defendant's conviction unless we can say, beyond a reasonable doubt, that the jury actually made the finding that
inheres in the element. [United States v.]Aramony, 88 F.3d
[1369, ]1386-87[ (4th Cir. 1996)]; United States v. Johnson,
71 F.3d 139, 143 (4th Cir. 1995); United States v. Forbes,
64 F.3d 928, 934-35 (4th Cir. 1995) . . . .
Hawthorne, 94 F.3d at 121; accord Smith, 94 F.3d at 124 (making
same proposition and citing same cases). In so stating, the Hawthorne
and Smith courts implied that a district court's misinstruction to the
jury on an essential element of the crime, like a district court's failure
to instruct on an essential element, is never amenable to harmlesserror analysis.6 However, none of the three authorities cited for that
expansive proposition in fact establishes it.
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6 The cases relied upon by United States v. Hawthorne, 94 F.3d 118
(4th Cir. 1996), and United States v. Smith , 94 F.3d 122 (4th Cir. 1996),
state that a district court's failure to instruct the jury on an essential element of the crime may be amenable to harmless-error analysis, but only
in the rare instance where "the reviewing court can be satisfied that the
jury actually made an equivalent or identical finding pursuant to another
instruction." United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir.
1996) (citing United States v. Forbes, 64 F.3d 928, 935 (4th Cir. 1995)).
Therefore, the Hawthorne and Smith courts' unexplained extension of
this principle to cases of a district court's misinstruction to the jury sug15
The first of them, United States v. Aramony, 88 F.3d 1369 (4th Cir.
1996), does not establish that a district court's misinstruction is never
amenable to harmless-error analysis. Instead, the case holds that a district court's failure to instruct on an essential element of the crime is
not amenable to harmless-error review. See id. at 1387. Nowhere in
Aramony did we suggest that a district court's misinstruction to the
jury is not amenable to harmless-error analysis. In United States v.
Johnson, 71 F.3d 139 (4th Cir. 1995), we held that a district court's
conclusive instruction to the jury on an essential element of the crime
could not be analyzed under the harmless-error standard. See id. at
143-44. Again, as in Aramony, nothing in Johnson suggested that
harmless-error analysis is not appropriate when the district court
misinstructs the jury. Finally, in United States v. Forbes, 64 F.3d 928
(4th Cir. 1995), we stated "that failing to instruct the jury on an essential element will rarely be harmless." Id. at 935. Nevertheless, we held
that the failure to instruct in that case was harmless, stating that "even
the rare bird appears occasionally, and this case is it." Id. Again, as
in Aramony and Johnson, we did nothing to establish that harmlesserror analysis is inappropriate in cases of jury misinstruction.
Thus, to the extent the statements in Hawthorne and Smith imply
that a district court's misinstruction to the jury on an essential element
of the crime is never amenable to harmless-error analysis, they were
unexplained extensions of our holdings in Aramony, Johnson, and
Forbes. More importantly, the statements, if so read, conflict with
Supreme Court precedent, most notably the Supreme Court's recent
decision in Johnson v. United States, 117 S. Ct. 1544 (1997). In
Johnson, a nearly unanimous Supreme Court stated unequivocally
that misinstructing the jury on an essential element of the offense,
unlike conclusively instructing or failing to instruct the jury, is "an
error which is subject to harmless error analysis." Johnson, 117 S. Ct.
at 1550. In doing so, the Supreme Court merely affirmed its long-time
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gests, perhaps, that Hawthorne and Smith may be read to permit
harmless-error review in cases where the jury actually makes an equivalent or identical finding pursuant to a properly-given instruction on a separate count. Such cases are, in my view, a rarity. Thus, Hawthorne and
Smith, however read, plainly "imply" that a district court's misinstruction
to the jury is "never" amenable to harmless-error analysis.
16
harmless when it is highly probable that the error did not contribute
to the judgment" (quotations omitted)); but cf. United States v.
Rehkop, 96 F.3d 301, 306 (8th Cir. 1996) (holding that 924(c)(1)
instructional error affected defendant's substantial rights); United
States v. Webster, 84 F.3d 1056, 1067 (8th Cir. 1996) (same). My
careful review of the record reveals that the district court's misinstruction on "use" was "unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record."
Yates, 500 U.S. at 403.
The evidence that Chang served as a guard at the Mitchelville safehouse, that Chong supervised the guards at both the Upper Marlboro
and the Mitchelville safehouses, and that the guards actively
employed firearms during the underlying crime of violence, permits
no other conclusion but that Appellants used or carried (or aided and
abetted the using or carrying of) firearms in the post-Bailey sense of
those terms in violation of 924(c)(1). The victims of the kidnapping
were confined in a basement against their wishes by guards who, at
the very least, moved around with firearms in their possession. There
is absolutely no evidence of the sort of possession that would not violate 924(c)(1). Indeed, I cannot imagine a hostage scenario where
a kidnapper could possess a firearm without also using or carrying it.
Here, the guards possessed firearms on their persons while moving
around the safehouse, marching hostages upstairs to make extortionate phone calls, and so forth. Thus, the evidence leads to the unavoidable conclusion that the guards "carried" firearms in violation of
924(c)(1). See Mitchell, 104 F.3d at 653 (holding that "carrying" a
firearm requires possession, plus some manner of movement or conveyance). Moreover, hostages testified that they were afraid to leave
the basement because the guards were armed, evidencing that the
guards displayed their weapons to the hostages (who greatly outnumbered them), thereby establishing that Appellants violated
924(c)(1)'s "use" prong. See Bailey, 116 S. Ct. at 508 (holding that
"use" of a firearm "includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm"
(emphasis supplied)). Indeed, the record reveals that the guards were
shown how to gesture with the guns in a threatening manner for the
purpose of intimidating the hostages.
Chong and Chang claim that some hostages testified only that "appellants possessed firearms in the place where they committed a crime
20
of violence," not that Appellants used or carried firearms. (Appellants' Supp. Br. at 21-22.) Mere possession of a firearm, they correctly state, does not violate 924(c)(1). See Bailey, 116 S. Ct. at 508.
Appellants argue that because such evidence of mere possession was
presented to the jury, "it is impossible to determine whether the verdict was based on a legitimate theory of `active employment.'"
(Appellants' Supp. Br. at 21.) Thus, they contend that their
924(c)(1) convictions must be reversed.
I simply cannot agree. At no time was evidence of mere possession
presented to the jury. Several testifying hostages answered affirmatively the prosecution's question, "Did you see anyone who possessed
a firearm?" For example, hostages Chen Xiao Tao and Guang Yong
Wang testified that Appellants possessed firearms. Standing alone this
testimony might establish only mere possession. The testimony of
these hostages, however, consisted of much more. Chen Xiao Tao testified that he was "confined to a basement" by the guards where he
had "no freedom" (J.A. at 157), that the guards were armed, that he
heard a gunshot during the time he was held hostage, and that Chang
was one of the guards. He also testified as follows:
Q Did you ever attempt to leave the house? . . .
A Yes. I want to leave the house badly, but I couldn't.
Q Why couldn't you leave?
A Because guards, they have the gun.
(J.A. at 158.) This testimony plainly presented evidence to the jury of
post-Bailey and post-Mitchell use or carrying of a firearm.
Guang Yong Wang's testimony also presented evidence to the jury
of post-Bailey and post-Mitchell use or carrying. After testifying that
he was confined in the basement by armed guards, and that one of the
guards was Chang, Guang Yong Wang engaged with the prosecutor
in the following colloquy:
Q Was he, was [Chang] one of the people who was watching you when you were at the house that you've been
telling us about?
21
A Yes.
Q When you were at the house, did you ever try to leave?
A Yes.
Q Did you ever leave the house?
A No.
Q Why not?
A I was so scared.
Q Why were you scared?
A Because they have gun.
Q Do you see anyone in this room who you noticed in
possession of a firearm while you were staying at that
house in the basement that you've been telling us
about?
A [Chang].
Q How many times do you believe that you saw him with
a firearm?
A Every time I saw him he had the gun with him.
* * *
Q How many times, in terms of numbers of occasions if
you can estimate, do you believe that you saw [Chang]
in possession of a firearm?
A I don't remember. I just can say whenever I saw him,
he had a gun.
22
(J.A. at 216.) The testimony of Chen Xiao Tao and Guang Yong
Wang is emblematic of the testimony given by all of the testifying
hostages. My review of the record reveals that no hostage testified of
possession that would not violate 924(c)(1).
Chang was positively identified at trial as one of the guards and has
never contended that he did not actively employ a firearm in his role
as a guard of the hostages. See Olano, 507 U.S. at 734 (stating that
under Rule 52(b), "[i]t is the defendant rather than the Government
who bears the burden of persuasion with respect to prejudice").
Although Chong contends that he did not use or carry a firearm in
connection with the underlying crime of violence, the evidence that
he supervised the guards who actively employed firearms -- thereby
aiding and abetting the use or carrying of a firearm in violation of the
statute -- is overwhelming.10 Consequently, the guilty verdicts ren_________________________________________________________________
10 Because the evidence that Chong supervised the guards who actively
employed firearms is overwhelming, I reject Chong's assertion that the
evidence was insufficient to support his conviction under 924(c)(1).
When reviewing a sufficiency-of-the-evidence claim, the jury's verdict
will be sustained "if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United States, 315
U.S. 60, 80 (1942). "[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117 S.
Ct. 1087 (1997). Here, the evidence in the trial record is more than sufficient to support the jury's determination that Chong used or carried a
firearm, or aided and abetted the same, in violation of 924(c)(1). As I
have stated, he supervised the guards, first at the Upper Marlboro safehouse and then at the Mitchelville safehouse. At both places the guards
were armed. The trial record reveals that the guards at the Mitchelville
safehouse confined the hostages in the basement of the house at gunpoint. Based on these facts, I conclude that the evidence was more than
sufficient to support Chong's conviction for using or carrying a firearm,
or aiding and abetting the same, during and in relation to a crime of violence. See United States v. Cook, 76 F.3d 596, 603 (4th Cir.) (affirming
924(c)(1) conviction and stating that "the evidence . . . was clearly sufficient to support the conclusion that [the defendant] knew that [his
cohort] was brandishing a gun during the drug transaction"), cert. denied,
117 S. Ct. 320 (1996); United States v. Hayden, 85 F.3d 153, 162 (4th
Cir. 1996) (holding that evidence was sufficient to support 924(c)(1)
conviction); see also United States v. Mitchell, 104 F.3d 649, 654 (4th
Cir. 1997) (holding that evidence was sufficient to provide factual basis
for defendant's guilty plea to 924(c)(1) charge).
23